The best element of the response is that they have set up a Mental Capacity Act Steering Group to review the evidence heard by the Committee. This is great, and hopefully it might go some way towards restoring the vacuum of leadership in relation to the Mental Capacity Act and the deprivation of liberty safeguards, which has been a recurring theme in evidence to the House of Lords Select Committee.

The government hopes that ‘improvements in the understanding and use of the Mental Capacity Act 2005 amongst health and care professionals will support improvements in the use of the Deprivation of Liberty Safeguards’. Obviously, since the DoLS are part of the Mental Capacity Act 2005 and you cannot comply with the DoLS without also complying with the Mental Capacity Act, it is necessarily true that improvements in understanding the MCA should lead to improvements in understanding the DoLS. However, this line – that if you can just grasp the MCA you can grasp the DoLS – to me misses the point that the DoLS are also a framework that is committed to complying with Article 5 ECHR. And complying with Article 5 ECHR makes requirements over and above the MCA, which I fear many people struggle to comprehend. In particular, the necessity of ensuring that people can exercise their appeal rights (on which, see MH v UK). All too often people apply the logic of the MCA to interpreting people’s rights of appeal (you can appeal if it’s in your best interests to do so), when this is absolutely not what Article 5 says, and there is a pressing need to address that misunderstanding throughout the DoLS system.

I am of the view that the DoLS system needs a radical legislative overhaul to address the issues around the appeal mechanism, conflicts of interest and it’s sheer complexity and scope for arbitrary application (how ironic that the purpose of Article 5 is the protect against arbitrary deprivation of liberty, when there is little about the DoLS which is not arbitrary). Failing that, I think we need a revised code of practice to offer guidance which is updated to take into account the growing number of domestic and ECHR authorities on how to operate the DoLS. As I wrote about MH v UK, I think the current code actively discourages ECHR compliance by implying that involvement of the courts is at the discretion of IMCAs and RPRs, and only where ‘necessary’ (whatever that means). Yet the government in its response only says that it plans to revise the Mental Health Act code of practice, with regard to the interface with the Mental Health Act. I am not saying that is not also required, but I hope they will also address the problems with the DoLS code as well.

The government plans to work with NHS England to support action to implement the DoLS. I am not the first person to wonder – why NHS England, when the DoLS are administered by local authorities and the majority of applications relate to care homes? What happened to the Local Government Association, whose system of peer review was supposed to replace the CQC’s performance reviews which the government summarily scrapped – what work are they doing on the DoLS? If the government were serious about working out what was going wrong with the DoLS, they could look at whether the CQC has powers to review the performance of local authorities who make up the outliers in terms of applications, reviews and s39D referrals. Instead, the government appears minded to limit yet further the ability of CQC to review the performance of local authorities in relation to adult social care.

In fairness to the government, they may be waiting to see what the House of Lords Select Committee and – if they do still plan to conduct an inquiry – the Equality and Human Rights Commission, have to say about DoLS before deciding how to proceed. No doubt they are also waiting to hear the judgment in Cheshire. With so much uncertainty, it is difficult to plan.

Compared to the provisions of the Mental Health Act, DoLS isn't complicated. There are a lot of forms, which when compared to the classical simplicity of the three pieces of paper that sign away someone's liberties under the MHA may look alarming, but the forms are supposed to demonstrate that a deliberate and considered decision has been taken and that evidence of this decision has been shared with the person and their supporters, and we'd all want that I think? The 'DoLS is a bureaucratic nightmare' trope probably began with Richard Jones. Wish he'd pack this up, and there are plenty more serious criticisms to go for and he might do well to consider who echoes the point he makes. My observation is that the people who say this most loudly were generally speaking, not fans of the idea of embedded right for the vulnerable subjects of social policy to begin with and might like to reduce the intolerable requirement of filling in a form when you're infringing their rights quite radically by abolishing the entire regime to be replaced by … nothing at all.

Hi there, I concur that there is a general resistance to the DoLS in many quarters which is coming from people who cannot see the need for people to be able to receive independent scrutiny and review of the restrictions on their liberty which they are subject to in care services. They tend to take a rather fluffy and holdy-handsy approach to care services and professional discretion, and consider that these issues could be dealt with by CQC (an idea which 10 years of failed efforts at regulating these issues has not disproved, and which disregards the complexity of the issues and the role of commissioning). The (valid) critiques of DoLS risk playing into their hands. I also agree that there are far more important problems with the DoLS to be thinking about. But I do think the forms could be simplified!

About The Small Places

The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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